Among the many California Peculiarities that employers must face are special rules on personnel record keeping. In 2012 the Legislature, in enacting AB 2674, made those rules yet more complicated and onerous. Until December 31, 2012, employer obligations to make employee performance records or grievances available were drawn out in the seven subdivisions of Labor Code section 1198.5(a)-(g). Effective January 1, 2013, the statute’s subdivisions now number seventeen, reflecting nine key changes:
Before, the law gave “employees” the right to inspect records.
Now, former employees and their representatives (i.e., attorneys) are expressly afforded these right.
Before, employees only had a right to inspect records.
Now, it is a right to inspect and copy.
Before, there was no specific format or procedure to request records.
Now, employees may make requests orally (to inspect) or in writing (to receive copies), and employers may create a request form that employees can choose to use.
Before, employers had to make records available at undefined “reasonable intervals.”
Now, former employees can make one request for records per year, representatives 50 requests per month, and current employees – still unclear.
Before, employers were obligated to make records available within a reasonable time from the date they received the request.
Now, employers have a 30-day deadline or the employer and employee (or representative) can agree to a longer time frame up to 35 days.
Before, employers had to make records available at the employee’s work location or the place where the employer stores the records.
Now, employers can make them available at a mutually agreed upon location, by mail (and be reimbursed for postage), or a location within a reasonable driving distance from the employee’s residence (for employees terminated for harassment or workplace violence only).
Before, Section 1198.5 specified no timeframe for employers to retain these records.
Now, an employer must hold on to personnel records for at least three years after the employee’s termination.
Before, Section 1198.5 specified no right to modify records for privacy protection.
Now, employers may redact names of nonsupervisory employees from personnel records prior to copying or inspecting.
Before, there was no express consequence for not complying with record requests.
Now, an employer could be liable to the employee or the Labor Commissioner for a $750 penalty, plus injunctive relief and attorneys’ fees. These penalty provisions mirror those of Labor Code section 226. Note that the new provisions do not apply to an employee covered by a valid collective bargaining agreement, or an employee who files a lawsuit relating to a personnel matter against the employer.
Workplace Solutions: In light of the new inspection, copying, and recordkeeping rules, it is important that California employers review their recordkeeping practices and policies to ensure that their policies and personnel records are in order. There were also changes to Section 226 — click here to find out more on the new rules for payroll records. What has not changed are the types of documents that must be produced. The same language, which has been interpreted through various court opinions, remains, “records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” If you would like to discuss any of these rules further or explore strategies for effectively complying with the new law, please contact a Seyfarth Shaw attorney.